The Bombay High Court (Goa Bench) has held that compliance with Section 50 of the NDPS Act is mandatory, warranting strict adherence, and the empowered officer must inform the person to be searched, in clear and unambiguous terms, of their right to be searched in the presence of either a Gazetted Officer or a Magistrate.
Providing only one of these options, or providing a third option such as being searched by a Gazetted Officer who is part of the raiding party, vitiates the search, added the Court, while clarifying that a Gazetted Officer who is a member of the raiding team cannot be considered an “independent officer” as contemplated by Section 50, as their presence is intended to ensure impartiality and check the misuse of power.
Thus, the Court ruled that the failure to comply with the mandatory procedure renders the recovery of any illicit article from the person accused, suspicious and is fatal to the prosecution’s case, especially when the conviction is based solely on such recovery.
Hence, due to the non-compliance with the mandatory provisions of Section 50 of the NDPS Act, the High Court quashed the conviction and sentence passed by the Additional Sessions Judge. Consequently, the Appellant, Joseph Achola Ouma, was acquitted of all charges and ordered to be released from custody forthwith, subject to executing a P. R. Bond as required under law.
A Single Judge Bench of Justice Shreeram V. Shirsat observed a complete and gross non-compliance with the mandatory provisions of Section 50 of the NDPS Act. Upon analysing the evidence of the panch witness and the police witnesses, the Bench noted that the Appellant was only given the option to be searched before a Gazetted Officer and was not informed of his right to be searched before a “Magistrate”.
The Bench further observed that this appraisal was improper as the Gazetted Officer offered (the SDPO) was himself a part of the raiding party, which undermines the sanctity of the safeguard intended by Section 50. The Bench found that informing the suspect that a Gazetted Officer is present on the spot and that he can be searched in his presence pollutes the selection of the option and is in utter breach of the mandate of Section 50.
The trial court was found to have completely misdirected itself by concluding that there was compliance with Section 50, despite the clear failure to offer the option of a search before a Magistrate, added the Bench.
Briefly, the prosecution’s case is that, PSI Damodar Shirodkar received information that a Kenyan individual would be delivering narcotic drugs near Komarpant Samaj Hall at Colomb. A raiding party was formed, including two panch witnesses and a Gazetted Officer. After few hours, the Appellant, matching the description, was intercepted, and was informed of his right to be searched in the presence of a Gazetted Officer, and the SDPO was introduced as such.
The Appellant declined this right and also the right to search the raiding party members. Later, a personal search of the Appellant allegedly revealed white powder suspected to be cocaine and a liquid suspected to be LSD. Following this, the Appellant was arrested, and a chargesheet was filed, leading to his conviction by the Additional Sessions Court for offences under Sections 22(c) and 21(b) of the NDPS Act, 1985.
Appearances:
Advocates Shivraj Gaonkar, D. Gaonkar, Shithil Prabhu Dessai, and Prabhav Sirvoicar, for the Appellant
Advocate Pravin N. Faldessai, for the Respondent/State
